Derek McDowell (Labour)

If this and the other House have passed a Bill, why should a Minister acting on his or her own be entitled to amend it? If we have had a full debate and this House has taken a view, if the other House has taken the Bill and the President has signed it in the normal course, why should a Minister, simply because he or she considers it is necessary to fulfil our obligations to the European Union, be entitled in five or ten years' times to amend the primary legislation without any serious reference to this House? That is an important principle. I appreciate we have been doing this for many years now and that the power is contained in the l972 Act, but nonetheless it is an extraordinary important principle and one that perhaps deserves further discussion. All the issues about subsidiarity and hierarchy of law and so on come into play here.

When I saw that this Bill was ordered for today, my first inclination was to say, "this is horribly technical, maybe I will just go home early". Having decided not to do that, I read the comments of the Tánaiste when he went to the House of Lords in June of this year and debated what he considered to be an important issue, some of the issues that arise out a European Court of Justice Case No. 173/03. I appreciate this is technical in nature but nonetheless the Tánaiste thought it was sufficiently important to justify him going to the House of Lords, and perhaps we should tease it out. Essentially, what he sought to do reflects on what Senator Dardis said. He sought to resist the power, which the Commission is seeking to take unto itself, to require individual parliaments to transpose criminal law into national law. The European Court of Justice decided a requirement — which came under environmental law but involved the imposition of serious fines — which did not come within the third pillar but rather fell within the community jurisdiction, fell to the Commission to do. To put it in simple terms, the Commission considers it has power to require parliaments to impose serious crimes for serious criminal offences. I mention that case in the context of this debate because the Minister for Justice, Equality and Law Reform considers the Commission should not be entitled to take this power in areas of criminal law. He waxed lyrically and persuasively to the effect that because we have a different system of criminal law based on common law here and in Cyprus, Malta and the UK, we are entitled to set our own procedures and to deal with matters in our own way and that the Commission should not be allowed to take this power onto itself.

It seems the Minister's views, expressed strongly in the House of Lords, run contrary to what we seek to do in this Bill in so far as we seek to give the power to a Minister to simply transpose criminal law into Irish law by regulation. That is something which, implicitly at least, the Tánaiste and the Minister for Justice, Equality and Law Reform, who is an important player at Cabinet when dealing with these issues, has opposed publicly. I would like the Minister of State to deal further with that issue.

We had a debate recently in the Joint Committee on European Affairs about the passerelle provision, where the Finnish Presidency was making a proposal to move certain issues related to criminal law from the third pillar into the first pillar. Again, the Minister for Justice, Equality and Law Reform is strong about not wanting this done. That would have the effect of moving some issues dealing with criminal law from the third pillar, which is intergovernmental and which requires unanimity, into Community competence, which generally speaking does not.

I am struck by the determination of the Tánaiste to avoid any interference, as he would see it, by the Commission in our integral criminal law, yet we seek to do what is provided in this legislation. We seek to ensure that if the Commission provides in a directive that our criminal law should impose serious fines or even potential imprisonment, a Minister should be entitled to simply translate that into law without even reference to this House. There is contradiction there which I find difficult to reconcile.

Having read the Bill carefully, I consider this is important legislation. I appreciate it is simply, as the Minister would see it, regularising the position that has obtained heretofore. That particularly applies in the case of statutory instruments which are introduced under other Acts. However, viewing it dispassionately, one could only view that procedure that we have been using as simply a way of getting around the 1972 Act. It provides that we could not create indictable offences. Therefore we have been using other Acts to make statutory instruments which allow for the creation of indictable offences. That was a way of subverting the intention of the Oireachtas when it passed the 1972 Act, including that prohibition.

With the benefit of hindsight, perhaps it was just as well I took the trouble to read this Bill this afternoon because it shines a light on a sloppy administrative process and one to which I am reluctant to in any way give approval at this stage.